Bonanno v County of Suffolk2010 NY Slip Op 32172(U)

July 8, 2010Supreme Court, Suffolk CountyDocket Number: 27628/2006

Judge: Paul J. BaisleyRepublished from New York State Unified Court

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Short t:orm Order

SIRREME COUFL1’ - STA’I’E OF NEW YORK I.A.S. PART XX.3 VI SUFFOLK COUNTY

PRESENT: HON. PAUL J. BAISLEU, JR., J.S.C.

ANTHONY BONANNO, X

Plaintiff,

-against-

COUNTY OF SUFFOLK, POLICE OFFICE 3 SALVATORE P. YOVINO and SUFFOLK COUNTY POLICE ATHLETIC LEAGUE. IVC.,

Defendants. K

INDEX NO.: 27628/2006 CALENDAR NO.: 2009002660T MOTION DATE: 9/30/2009 MOTION NO. : 004 CASEDISP

PLAINTIFF’S ATTORNEY: RAUMAN & KUNKIS, P.C. 14 Penn Plaza, Suite 2208 New York, New York 10122

DEFENDANTS’ ATTORNEYS: CHRISTINE MALAFI, ESQ. Suffolk County Attorney 100 Veterans Memorial Highway Hauppauge, New York 1 1788

RIVKIN RADLER, LLP 926 RexCorp Plaza Uniondale, New York 11556-01 11

Upon the following papei.s numbered 1 to 19 teed on thisnlotion for summary judgment : Notice of Motion/ Order to Show Cause and supporting papers 1- 11 ; N&ec&=€ m p - ; Answering Affidavits and

I it is, supporting papers 12- 17; 18- 19 ; 3 p - :m-;(- . .

ORDERED that this motion (004) 114 the defendants, The County of Suffolk, Police Officer Salvatore Yovino, pursuant to CPLR 3212 for summary judgment dismissing the complaint is granted and the complaint of the, action is dismissed in its entirety with prejudice.

This is an action to recover damages *or the alleged libel, slander, negligent hiring and training and negligent supervision of the dc4:ndant police officer, Salvatore P. Yovino, by the defendant County of Suffclk. It has been al1i:ged by the plaintiff, Anthony Bonanno, that on November 6, 2005, he was present at the Po1 ice Athletic League Sports Complex, Holtsville, New York at a football game ar,d following the game, directed a combative, disgruntled park patron out of the park and advised police officer Salvatore P. Yovino. The plaintiff alleges that thereafter, he was sitting in his truck when Officer Yovino, in the presence and hearing of others, spoke to the plaintiff stating “I smell marijuana in your trick.” Tbe plaintiff contends he was not engaging in the use of marijuana and that Yovino refusix to arrest him when he challenged him to do so. On November 9,2005, Yovino allegedly submil[ed a written report of the incident to the Suffolk County Police Departmenr to Lieutenant Robert Donohue. The plaintiff claims the report was false and was disseminated to the Police Athletic League in I board meeting with the intenr to damage his employment, good name, reputation, and credit. The plaintiff claims he was thereafter terminated from his contract with the Police Athletic League (PAL) in December 2 005.

The County of Suffolk and Police Officer Salvatore P. Yovino now seek an order granting summary judgment dismi: sing the complain asserted against them.

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Anthony Bonanno v County of Sujyolk et al. Index No. 27628/2006

In support of this application, the moliing defendants have submitted, inter alia, an attorney’s affirmation; copies of the pleadings and answer and amended answers, including the counterclaim by County of Suffolk and Pol LC : Officer Salvatore P. Yovino for contribution; a copy of the Internal Correspondence dated IV ivember 9,2005 by Salvatore Yovino; and copies of the transcripts of the examinations before tri; 1 of Robert John dated June 18,2008 and Anthony Bonanno dated April 1 1, 2008. In opposing his mot on, the plaintiff has submitted, inter alia, an attorney‘s affirmation; the affidavits of Anthony Bonanno, Patricia Armine and John Deblasio.

The adduced testimony establishes Ihit Officer Yovino was on duty at his job as a police officer and was present on November 6, 200‘1 at the PAL football field to observe a football game between twelve year olds from Huntington aiid the South Shore League to help defray any problems as there were prc vious complaintij : Ibout the conduct of the players/coaches/referees on the playing field with regard to yelling and not controlling their conduct. Yovino was observing the game with Robert John, a PAL Board member, and when the game was over, spotted Mr. Bonanno’s green van. Yovino wanted to let Bonanno know there was nothing further he could do about the woman who complained to him, I O advise I3onanno that he was leaving, and also, because Yovino’s his first van was green wh1:n he began his job, he thought Bonanno’s van might have been the same one. Bonanno testified tc purcha:;ing the van from PAL. When John and Yovino approached the van, Bonanno was seated inside. Standing by the driver’s side windows, both John and Yovino testified they could sniell marijuana coming from the van when the van window was opened, there was smoke in the vehicle. and Yovino stated Bonanno’s eyes appeared bloodshot. Bonanno denied that he had been smoking marijuana when Yovino questioned him and challenged Yovino to arrest him. Yovin i did not arrest him and he and John walked away. At his next work day, Yovino prepared the uritten memo directed to his supervising officer, Lieutenant Donohue, concerning his obser17a;ions of Bonnano at the PAL complex. Upon receiving the report, Bonanno’s boss, Georgc Waldbauer, who was employed by PAL and was responsible for hiring Bonanno, advised Bonanno that Donohue made a request for Bonanno to take a drug test whichhe did approximately t NO weeks later. Thereafter, a meeting was called by Donohue with the PAL Board, for which Do iohue and Yovino and John were board members, to discuss the situation and make a determination as to whether or not Bonanno’s employment should be continued. A copy of Yovino’s re 30rt was disseminated to the board. After a vote by the PAL Board, it was decided that Bonanrio’s contract, which was due to expire December 3 1, 2005, was not to be renewed. Bonanno had Jeen working for PAL for seventeen years.

Lieutenant Donohue recommended tl iat Bonanno seek employment with J. King, another Board member. Bonanno subsequently com nenced work with King in January 2006. It was the plaintiffs testimony that due to medical issuzs that he has been unable to work since the early spring of 2006 in that job. Anthony Bonannl) testified to the effect that he has since been working full time for Suffolk County Transit as a bus driver since July 2008 and has a CDL license. On November 6, 2005 he arrived at the PAL Sports Complex on Furrows Road for a football game, but had no duties or responsibilities there, a1 hough he was a board member for the South Shore Football League. He was alone when he drove his green van which he bought from the PAL about a year prior. He met up with his frie,ic Pat Armine and his friend John. He watched the whole game from about the second quarter on while sitting in his truck at about the 25 or 30 yard line on the east side of the field in an areas d-signated as a parking area for board members. Patricia Armine joined hirn in the front passtanger seat for about fifteen minutes in his vehicle

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1nfhon.v Bonanno v County of Sufolk et al Index No 27628/2006

towards the end of the game. John Deblasio ilso spoKe to him from outside the van on Pat’s side. John left before the game ended and Pat left ivhen the game ended. He left his vehicle for a time and returned to it after s o r e incidents occum1:d about the field. He testified that he had been smoking cigarettes in his vehicle and after thf: incidents, smoked about three when he got back into his van and was approached by Yovincl i nd John. When he opened his window, Yovino asked him if he was smoking marijuana, but le denied it and challenged Yovino to arrest him. The following week, his supervisor, George ’Naldbauer, asked him to take a drug test. He testified that he told Waldhauer he was afraic to take the drug test because he smoked pot on Columbus Day-that he “took a drag.” He later testified that he did not say that he took a drag of a marijuana cigarette and that prior to November 6, 2005 he never smoked marijuana. He testified that he submitted to the drug test. Waldbaue later showed him a copy of the report of November 9, 2005 prepared by Yovino and given to Lieitenant Donohue. Waldbauer did not give him a copy, he stated, but when Waldbauer wasn’t ooking, he made a copy of the report on the fax machine, kept the copy and showed it to his liance. He also testified that although he had been working, he had not filed income taxes for the last five years prior to the incident and did not pay any taxes.

In her affidavit, Patricia Armine set fi)rth that Anthony Bonanno did not use marijuana at the PAL facility in Holtsville on November t , 2005 as she was watching the majority of the football game with him. However, Bonanro testified she was only watching the game with him for about fifteen minutes. John Deblasio hais submitted an affidavit which is not signed or notarized and therefore is riot in admissible firm pursuant to CPLR 3212, and is not considered.

In support of the instant application, 1 he moving defendants have also submitted a copy of the report prepared by Yovino dated November 9, 2005. In that report it is set forth, inter alia, that Yovino and Robert John, a member of tlie PAL Football Board of Directors, attended a football game between Huntington and Soutli Shore at the PAL complex on Furoughs Road, Holtsville. For several weeks the PAL Boarcl had received several complaints in regard to the behavior of the Huntington team’s players ar,d coaches. Yovino and John were there to observe the game and arrived shonly after the opening kick-off. The report indicated the game was well played and many of the spectators were lo^ d “handshake line” and Yovino observed the s xctators. Anthony Bonanno, an employee of PAL, approached Yovino and John and advised he had just thrown out a Huntington fan who was cursing at the referees and that the person lelt the scene in a vehicle. However, Yovino and John, who were about 50 yards away, did not see c r hear any such disturbance. Thereafter, a South Shore female parent approached and stated t iat during the game she had been verbally abused by an unknown Huntington parent who left. After retrieving two game referees to start the next game, Yovino and Roben John walked ovei to Bonanno’s green van which Bonanno was sitting in to tell him the outcome of an incident at tlie game and to let him know there was nothing further that could be done and that they werc leaving. The report continues that “When Mr. Bonanno rolled down the window of the v u which was parked behind the bleachers, both the Undersigned and Mr. John smelled the unniir;takable smell of marijuana coming from inside the van. The van had smoke inside it and Mr. Bonanno‘s eyes appeared to be bloodshot. The undersigned questioned Nlr. Bonanno if he bras smoking marijuana, which he denied. Finally Mr. Bonanno stated ‘and what are you going to c 0, arresl me’?’ The undersigned felt at that time that since Mr. Bonanno was an employee of PA1 , Inc. and that the atmosphere was very tense with

When the game ended, John observed the

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dnthony Bonanno v County ofSuJcOlk et af Index No. 27628/2006

many South Shore parents still around, that e tercising my Search and Seizure authority would merely exaggerate a bad siauation and might ])ut Mr. .fohn in some form of physical danger. The undersigned has been a Po!ice Office for 23 J ears and have (sic) no doubts that Mr. Bonanno was indeed smoking marijuana The undersigned strongly feels that Mr. Bonanno should be terminated from Suffolk PAL Inc. immediately, as how can we continue to state that we have a zero tolerance rule for drug use. Mr. Bonarino’s actions can not be overlooked and he should receive a life time ban from all PAL activitje ; as well as his immediate termination. It is the undersigned’s opinion that Mr. Bonanno is ail embarrassment to the Suffolk County Police Athletic League as well as the Suffolk Count i Police Department.”

The plaintiff bases his defamation clilim upoii this report dated November 9, 2005, prepared by Yovino. In re fiewing the same:, it is determined as a matter of law that the report is non-actionable opinion and is also protected 3y qualified privilege.

QUALIFIED PRIVILEGE

A qualified privilege arises when a pe rson makes a good faith, bona fide communication upon a subject in which he or she has an in1.e -est, or i t legal, moral or societal interest to speak, and the communication is made to a person IJith a corresponding interest. The underlying rationale of this common interest privilege is that so iong as the privilege is not abused, the flow of information between persons sharing a coinmon interest should not be impeded (Grier v .Johuson, 295 AD2d 888,686 NYS2d 535 [ 3 Dept 19991). This common interest includes statements to fellow employees on a subject :oncerning the employer (Curren v Carbonic Systems, Inc. et al, 58 AD3d 1104, 872 NY S2d 240 [3rd Dept 20091). The interest must be expressed in a reasonable manner and for a proper purpose (Cucinotta v Deloitte & Touche, LLP, 2008 NY Slip Op 51848U, 20 Misc3d 1 1 3 3 k ~ ; see alyo, Toker v Pollack, 44 NY2d 21 1 [19781).

In the instant action it is determined that a qualified privilege has attached given the facts and circumstances in this action. It is deterrr ined that the moving defendant has demonstrated that a good faith, bona fide communication \?as made between an officer and his supervisor upon a subject which directly affects the officer in his overseeing the games with PAL in that PAL lhas a zero tolerance for drug use which is adverse to the tenants of the organization and detrimental to the goals set for the children who participx.e in PAL activities, also because Bonanno was employed by PAL as an independent contractor, and also because marijuana use is not a legal activity. The parties demcmstrated a legal, IT oral, and societal interest to speak, and the communication was made to persons with ,a :orresponding interest as Donohue was a member of the PAL Board as well as being Yovino’s suJerior oj’ficer. Yovino was also a member of the PAL board as was Robert John. The report is de:tc:rmined to contain a flow of information between persons with common ink rest which should not be impeded; the statements of common interest were made to a fellow em*Jloyee of the SufYolk County Police Department and member of the PAL Board on a subject concerning alleged tirug use on the PAL fields during childrens’ games.

The shield provided by a qualified privilege is dissolved if a plaintiff demonstrates that the defendant spoke with malice (Lieberman v C;elstein, 80 NY2d 429, 590 NYS2d 857 [1992]). The privilege will be lost where the statement \vi s not made for its stated purpose or if it was made with malice, that is to say with ill will, spite. or culpable recklessness (Cucinotta v Deloitte &

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.lnthon,v Bonanno v County ofSujfolk et al Index No 2 762812006

Touche, LLP, supra). After a finding that thl: defendant has sustained its burden of demonstrating that the statements were protected by a qualiiied privilege, the burden then shifts to the plaintiff to demonstrate that the defendant spoke with in dice either under the common-law or constitutional standard (see, Demas v Levitsky, 98 NY2d ‘7; 8, 738 NYS2d 402 [2002]). Under common law, malice meant spite or ill will (see, Liebermm v Gelstein, supra), whereas constitutional malice requires a showing that a defendant acted with knowledge that [his] her statements were false or with reckless disregard of whether they were false ( S L Y , Sanderson v Bellevue Maternity Hosp., 259 AD2d 888, 686 NYS2d 535 [3rd Dept 19991). Accordingly, to overcome this prima facie showing, plaintiff has to establish that “malic e was the one and only cause for the publication”’ (Lieberman v Gelstein, supra, quoting Stukdc v State ofNew York, 42 NY2d 272, 397 NYS2d 740 [1977])” (see, Lerwick v Krna, 29 AD3d 12106, 815 NYS2d 767 [3‘d Dept 20061). “In a defamation context, malice includes spite, ill will, knowledge that the statements are false or reckless disregard as to wl-ether they are fah:. Spite and ill will refer to the speaker’s motivation for making the allegedly defamatory commeiits, not to the defendant’s general feelings about the plaintiff. Thus a trial issue is raised only if a jury could reasonably conclude that malice was the one and only cause for the publication” (Ctrr,*en v Carboizics Systems, Inc. et al, supra). In the instant action, no trial issuc is raised in that t le record does not support that a jury could reasonably conclude that malice was the one and onl;i cause for the publication.

The record does net support an inference of malice by Officer Yovino concerning the within incident. It is further determined that ajury could not reasonably conclude that malice was the one and only cause for the publication. 7 here ha:; been no admissible evidence submitted to raise a factual issue in this regard. The recorri does not demonstrate any ongoing discord or problems between the parties prior to the d,2tz of the incident. Bonanno testified that he only received minor complaints made by Officei- 1 lonohue about garbage not being emptied and Halloween decorations n o being removed, but he did not testify there was any animosity between the parties. Yovino’s testimony was supportzd by Robert John that they smelled marijuana and saw smoke coming from Bonanno’s vehick ind that his eyes appeared bloodshot.

The philosophy, goals and objectivc:s and values of PAL include the zero tolerance for drugs, and Yovino is not cnly a Suffolk Cou ity Police Officer, but a board member for PAL. The record clearly demonstrates an objective be si s for making the report based upon the belief by Yovino that Bonanno had been smoking maiijuana in the van on PAL complex grounds while parents and children alike were utilizing thz xemise:;. No basis for animosity or ongoing problems between Yovino and Bonanno helv 2 been demonstrated. The plaintiffs testimony that he made a complaint about Yovino after the incident is unsupported by any admissible evidence. Nor has the result of any drug testing been siibmitted by the plaintiff to demonstrate the results of the drug testing. There has been no expert tc stimonq submitted on his behalf to raise a factual issue concerning the alleged marijuana use. Based upon the foregoing, it is determined as a matter of law that ajury could not conclude hat malice was the one and only cause for the publication.

DEFAMATION

The first cause of action sounds in tlc famatio n. 7 he second cause of action sounds in negligence premised upon the rule of eviden :e, Res Ipsa Loquitur, asserting that negligence can be inferred premised upon the defendant Yo.iino’s alleged defamatory report of November 9, 2005.

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Anthony Bonanno v County of Sui‘blk et a1 Index No. 2 7628/2006

In reviewing the report of November >, 2009, it is determined that the words claimed by Bonanno to be defamatory are protected by q ialified privilege and are nonactionable opinion supported by the facts upon which they are bi tsed and are therefore afforded complete immunity and no negligence can be i-iferred therefrom.

Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance (,?’rewell v NYP lictldings, Znc 1 Misc3d 847, 772 N.Y.S.2d 188 [Supreme Court of New Y x-k, New York County 20031). In determining whether a reasonable listener would have viewed defendant’s corninunication as an expression of opinion or a statement of fact that would support ii defamation claini, i t is necessary to consider the content of the whole communication, its tone arid apparent purpos? (Cook v Rtilin, 280 AD2d 897, 721 NYS2d 885 [lst Dept 20011). In all defamation cases, the t1m:shold issue which must be determined, as a matter of law, is whether the complained of stateme its constitute fact or opinion (Parks v Steinbrenner, 11 5 AD2d 395, 520 N.Y.S.2d 374 [ lst Depi 1985l). If they fall within the ambit of “pure opinion” then even if false and libelous, and io matter how pejorative or pernicious they may be, such statements are safeguarded and may not serve a:; a basis for an action in defamation (Parks v Steinbrenner, supra). A statement falls within the ambit of “pure opinion” so as not to give rise to defamation claim, if it is a statement of opinion, and if it is accompanied by recitation of facts upon which it is based or does not imply that it is based on any undisclosed facts (Parks v Steinbrenner, supra). So long as opinion is accompanied by recitation of facts upon which it is based, it is deemed “pure opinion and is afio eded complete immunity, even though facts do not support opinion (Parks v Steinbrenner, supra).

The law governing defamation actions involving communications purporting to convey opinion has been explored in a quartet of rec :nt Court of Appeals decisions. As set forth in Brian v Richardson, 85 NY2d 808,637 N.Y.S.2d 3.F7 [1995], “the essence of the tort libel is the publication of a statement about an individu: 1 that is both false and defamatory. Since falsity is a sine qua non of a libel claim and since on14 i ssertions of fact are capable of being proven false, we have consistently held that a libel action (:annot be maintained unless it is premised on published assertions of fac t.” Non-actionab e “pure opinion” is a statement of opinion accompanied by recitation of facts upon whil:h it is based, or, if not accompanied by such factual recitation, statement that does not imply it is based upon undisclosed facts (Steinhilber v Alphonse, 68 N.Y.2d 283, 508 N.Y.S.2d 901 [1986]:. It is a settled rule that expressions of an opinion, “false or not, libelous or not, are co istitutiorally protected and may not be the subject of private damage actions” (Steinhilber v Alplzc nse, supra).

In Steinhilber, the Court referred to JJdge Starr’s plurality opinion in Ollman v Evans, 750 F.2d 970 (see also, Felder v Sheresky, 198‘3 VY Misc Lexis 906 [Supreme Court New York, New York County 19891) whic i set forth a four frctor analysis and which rejected any “mechanistic rule” based on the semant.c nature of the assertion ire favor of a determination on “totality of the circumstances.” In distinguishing between f ict and opinion, the four factors are: (1) an assessment of whether the specific language in issue has a precise meaning which is readily understood or whether it i ; indefinite and an biguous; (2) a determination of whether the statement is capable of be ng objectively clxracterized as true or false; (3) an examination of the full context of the communication in which i he state nent appears; and (4) a consideration of the broader social context or setting surrounding the communication including the existence of any applicable customs or conventions which rnight “signal to readers or listeners that what is being read or heard is likely to be opinion, not fact ,” (Steinhilber v Alphonse, supra, citing from Ollaman v Evans, supra). The four factors are applied as follows:

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(1) An assessment of whether the specific l3r guage in issue has a precise meaning which is readily understood or whether it is indefinite and ambiguous. It is determined that the specific language used by Yovino in his report is clear, definite and unambiguous. Yovino set forth the date, place and specificall) indicated that u.h :n Bonanno opened the window of his van that Yovino smelled marijuana, saw smoke, and that Bonmno’s eyes appeared bloodshot, and he further based his assessment of the situation ipon his years of experience as a police officer.

(2) A determination of whether the statement is capable of being objectively characterized as true or false. It is determined that the statement i:; not capable of being objectively characterized as true or false in that Yovinci clearly set forth a n opinion based upon his belief that Bonanno was smoking marijuana. No evidence has been srbmittecl to establish that the statement was false when it was made and no expert testimony h,is been submitted to dispute the statement.

(3) An examination of the full context of the communication in which the statement appears. It is determined that the examination of the full context of the communication in which the statement appears is that of an opinion set forth in a rlqlort prepared by an officer who was on duty at a PAL sponsored event in response to an incident involving the plaintiff at the event. Yovino further added in the report that he felt at that time th it because Mr. Bonanno was an employee of PAL and that the atmosphere was very tense with many South Shore parents still around at the game, that exercising his Search 2nd Seizure authxity would merely exaggerate a bad situation and might put Mr. John in s o r e form of physical danger. He further stated that based upon his being a Police Office for 23 years he had no doutit: that MI. Bonanno was indeed smoking marijuana, and strongly felt that due t3 the zero tolerarics for drug use, Mr. Bonanno should be terminated fi-om Suffolk PAL immediately, that Mr. Elonanno’s actions not be overlooked, and that he should receive a life-time 3an from all PAL itctivitie:,. It was Yovino’s further opinion that Mr. Bonanno is an embarrassment to the Suffolk County Police Athletic League as well as the Suffolk County Police Department. It is determined that a clear recitation of the facts upon which Yovino based his opinion on were set forth in the r q ort to prevent embarrassment to the PAL and to uphold the zero drug tolerance policy of PA1 ,.

(4) A consideration of the broader so :ial context or setting surrounding the communication including the existence of ar y applicable customs or conventions which might signal to readers or listeners that what is beirg read cbr heard is likely to be opinion, not fact. Yovino was a Suffolk County Police Officer assigned to work the Suffolk County Police Athletic League which provides recreation and sporti ig activities to the children of Suffolk County. Officer Yovino was on duty at the time of 1h: incident involving Mr. Bonanno. It is undisputed testimony that PAL has a :cero tolerance conc:erning tirug use. The totality of the circumstances strongly suggests to even the most tolerant o F indiviauals that the appearance of permitting marijuana use to be tolerared at the chi1dre:l’s games is contrary to the philosophy of PAL, its goals for the children, and the role models sc t for the children and that such conduct would not permitted.

Based upon the foregoing applicatior of the iour factors set forth above, and considering the totality of the circumstances, it is determined that the words contained in the report constitute non-actionable opinion.

Accordingly, that part of the complaint premised upon defamation is dismissed with prejudice.

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,-lntliony Ronanno v Count,v ojSujj%lk et al Index No. 2 7628/2006

NEGLIGENCE AND GROSS NEGLIGIEIVCE

The plaintiff has also asserted causes of action sounding in negligence by Yovino in making the alleged defamatory report; negligence and gross negligence by the County of Suffolk in the training, hiring, supervision and retent on of Yovino based upon his failing to comply with the laws, rules and regulatlons governing pol ice misconduct; the failure to investigate, discipline and remove police officers who failed to ccln Lply with laws, rules and regulations governing police misconduct, constituting deliberate indifferei ice to the plaintiffs constitutional right.

In New York, to establish a prima fhcie case of negligence, a plaintiff must prove (1) that the defendant owed a duty to plaintiff, (2) a Ilreach thereof, and (3) injury proximately resulting therefrom. In order to establish the third elernent, proximate cause, the plaintiff must show that the defendant’s negligence was a substantial factor in bringing about the injury. If the defendant’s negligence were a substantial factor, it is considered to be a “proximate cause” even though other substantial factors may also have contributed to plaintiffs injury (Spiegel v Fine Paint Co. 2006 NY Misc LEXIS 2549, 22 6 NYLJ 51 [Sup. 3 . Nassau County 20061).

Gross negligence i:; substantially and appreciably higher in magnitude and more culpable than ordinary negligence and is equivalent to the failure to exercise even a light degree of care; it is materially more want of care than constitu es simple inadvertence; it is an act or omission respecting legal duty of an aggravated charx ter as distinguished from a mere failure to exercise ordinary care; it is very grt:at negligence, or the absence of slight diligence, or the want of even scant care; it amounts to indifference to prc scxt legal duty, and to utter forgetfulness of legal obligations so far as other persons may be af ’ected; ir is a heedless and culpable violation of legal duty respecting the right o F others; the elerrie its of culpability which characterizes all negligence is. in gross negligence, magnified to a high dzgree as compared with that present in ordinary negligence; gross negligence is manifestly (3 ;maller iimount of watchfulness and circumspection than the circumstances require of a prudent rian (see, O’Malley v Jegabbi, 12 AD2d 389,211 NYS2d 547 [31d Dept 196. I). “Gross negligence medns that the defendant is so extremely careless that it is equivalent to recklessness, While ordinary negligence is the doing of some act which a reasonably prudent person would riot do under the circumstances or a failure to use ordinary and reasonable care under the circui nstances. Gross negligence involves the thoughtless disregard of consequences without any atterrpt to avoid them” (Veals v Consolidated Edison Compnay cfNew York, 114 Misc2d 626,452 NYS2cl 153 [Civil Court of the City of New York, Kings County 19821). While negligence is tlie failurz to exercise ordinary care, gross negligence is more than the failure to exercise reasonable care and means a failure to use even slight care, or conduct that is so reckless as to show complc*te disregard for the rights and safety of others (Johnson v Smith, 2006 N Y Misc Lexis 26 1 t [City Court of New York, Jefferson County 20061). While the question of negligence, either ordinary or gross, is ordinarily one for the judgment of the trier of the facts, it may become a questic n of laur (Jensen v Fletcher, 277 AD2d 454, 101 NYS2d 75 [4‘h Dept 19501.

The unrefuted testimony has establislied that Yovino, a member of the PAL board and an employee of the Suffolk County Police Department, was assigned to observe and assess the situation at the game due to complaints abcm t the conduct of some players/coaches/observers from the Huntington and South Shore. Yovino es ablisheti a basis for his report in that he stated he smelled marijuana and saw the smoke in the plaintiff‘s vehicle and observed Bonanno’s eyes to be bloodshot while present at the PAL football ;ame. ‘I’his smell of marijuana and the smoke

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permeating from the plaintiffs vehicle was also obseived by Robert John, also from PAL. Bonanno was a board member in the South S lore League and also employed by PAL as an independent contractor. It has been estab1ishi:d prima facie that Yovino did not breach any duty to the plaintiff by making his observations and idriting his report as part of his duty as a police officer assigned to the game at the PAL field. It has been demonstrated prima facie that Yovino exercised ordinary care and did not conduct himself in a manner that is so reckless as to show complete disregard for the rights and safety o F others, including the plaintiff. Yovino wrote the report based upon his obse-vation of the plair tiff as part of his job based upon the rules and procedures within the polite department and ,he direction of his supervising officer. The plaintiff has not demonstrated by the submission of ar y admissible evidence that the defendant County of Suffolk negligently hired, Ietained or supervi sed Yovino or that the County of Suffolk was grossly negligent in their hiring, retention or super\ i: ion of \r~ovino. The plaintiff makes only conclusory assertions concerning the same. No rules or :;tandards have been set forth which are claimed to have been violated, and no expert testimony lias been submitted in support of this claim to raise any factual issue to preclude summary judgment. The plaintiff has not submitted any admissible evidence to raise a factual Lssue sufficient to xeclude sunimary judgment on the issue of negligence or gross negligence. It is therefor: determined as a matter of law that Yovino did not breach any duty to the plai itiff or that a breac h of a duty proximately caused injury to the plaintiff, or that he acted in reckless regard of the righl s of the plaintiff.

Accordingly, the cause of action asseited against Yovino for negligence (re ipsa loquitor) in writing the report is dismissed as a matter af law; and the causes of action asserted against the County of Suffolk for negligence and gross negligence in the hiring, retention and supervision of the defendant Yovino are dismissed as a ma ter of law.

Dated: July 8, 2010 J.S.C.

X FINAL DISPOS17'ION ___ NON-FINAL DISPOSITION

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